The writ of habeas corpus : speech of Hon. Nath'l W. Davis, of Tioga County, in the House of Assembly, March 5, 1863

No. 13.
Documents from N. Y. State Union Central Committee.

THE WRIT OF HABEAS CORPUS.

SPEECH

HON. NATITL W, DAYIS,

TIOC3h^ OOXJl^TTl^,

•In the Honse of Assembly, March 5, 1863.

Mr. Speaker :

The Governor, in his annual message to the
Legislature of our State, announces the fact that
" we meet, under circumstances of unusual
solemnity, to legislate for the honor, for the inter-
est, and for the protection of the people of the
State of New York." And I think he should
have added, also, to aid in maintaining the honor
of our Nation, and in upholding our National ex-
istence, and in overthrowing the wicked rebel-
lion that is now desolating our land, and cany-
ing in its trail mourning and deep affliction to
the bosom of nearly every family in our com-
mon country, and casting a blighting mildew
over our future growth and prosperity.

The Governor also remarks: " Not only is our
National life at stake, but every personal, every
family, every sacred interest is involved." The
solemnity of tlie occasion, and the sufferings of
the war, should reanimate the virtue, the intelli-
gence and the patriotism of the American people.
'The decay of these has brought our calamities
upon us."

No man is better qualified than the Chief Ex-
ecutive officer of this state to make the solemn
declaration he has, when applied to the Demo-
cratic party. He has been with that party
which has been largely in the ascendency, and
which has controlled the destiny of this Nation
until virtue and patriotism has ceased, nearly, to
exist, and in its dying throes ; when these two
great elements, virtue and patriotism, had nearly

become extinct, sought, through the Chief Ex-
ecutive of the Nation, to dissolve the Govern-
ment and hand it over to secession and rebellion,
and, but for the Republican party and a small
portion of the Democratic, which have kept
alive virtue and true patriotism, the love of
liberty, our National existence would have be-
come extinct.

The Democratic party at the North, through
the press and the halls of legislation, have let no
opportunity pass to enable it to retain power and
place, insidiously to excite a prejudice and en-
gender hatred in the minds of our Southern
brethren against the people of the free States,
and deeply to impress upon the Southern mind
that it was a fixed and settled purpose on the
part of a majority of the people of the non-
slaveholding states to arrest from them the insti-
tution of slavery. This course of conduct was
continued until the malignant passion of the
Southern mind had become fired and aroused, and
so much excited that discussion relative to the
question of slavery by those who believed with
the founders of our Government and great Re-
public, and some of our early statesmen, that
the institution was inimical to the perpetuity of
our National existence, was virtually prohibited
in the slaveholding states. And those who
claimed that the freedom of speech should not
be abridged and dared to venture upon the un-
dertaking, were summarily expelled or ejected
from those states, and not unfrequently treated

with the greatest outrage and grossest indigni-
ties. This course of conduct was kept up by the
Democratic party at the North until the South-
ern mind had become so inflamed that laws of
great harshness and severity were passed, taking
away the Constitutional right that " the citizens
of each state should be entitled to all the privi-
leges and immunities of citizens in the several
states," which, in turn, caused many of the non-
holding slave states to pass laws somewhat re-
taliatory : Personal Liberty bill and bills pro-
hibitory of allowing slaveholders to bring their
slaves with them when traveling in the free
states, for any period of time, as they were once
accustomed to do ; breaking up somewhat that
amity of feeling that should ever have existed
between the slave and non-holding slave states.
The slaveholding states by overriding the Con-
stitution and passing harsh and cruel laws by
which they seized free and unoffending citizens
and cast them into prison, and then sold them into
slavery, brought about the passage of the laws of
the character before mentioned in the non-slave-
holding states.

If this unjust, unholy and wicked rebellion has
been caused "by an unavoidable contest about
slavery," or that slavery " has been the subject
and not the cause of the war," then indeed is the
Democratic party responsible for it. It is that
party, and that alone, that has brought this awful
calamity under which our National existence is
now rocking and reeling to its very base.

No political party of any moment, or any im-
portance whatever in the free states, ever claim-
ed that the institution of slavery could be inter-
fered with, but on the contrary uniformly gave
its influence in that direction that would uphold
it in the states where it existed — and were
pledged under the Constitution to defend all and
every right that they had secured to them under
that sacred instrument, which pledge has sa-
credly been maintained, even after the rebellion
had grown to its greatest enormity. The rebel-
lion has no justification — nor even an extenua-
ting circumstance. The Democratic party al-
ways well knew that the Whig party as such
were truly loyal and conservative, and adhered
with great pertinacity to the Constitution, as has
always the Republican ; and whenever the
Democratic party sought to override it, they en-
tered their solemn protest against it. So it now
is with the Republican {)arty as a party. Who
is it now that has attempted to destroy the Con-
stitution and is now putting it at defiance, but
quite a lai-ge proportion who two years since,
and at the time of this rebellion, constituted the
Strength and power of the Democratic party.

It may be asked, did there not once exist an
organized Abolition party in the non-slavehold-
ing states that assailed the institution of slavery ?
I answer, yes. It existed in words, but not in
deed. " By their works shall you know them."
The law of the civilized world is : A man shall
be judged of what he intended by his acts. In
1844 there was an organized political Abolition
party that professed to have a hatred to the in-
Btitution of slavery. The slavery propagandists

were desirous of extending the area of slavery by
annexing Texas, " the lone star of the South."
The Whig party North and South were opposed
to extending the boundaries of the United States
to extend the slave institution. The Democratic
party were its advocates. A great political race
was run between the outgoing President, John
Tyler, and the incoming President, James K.
Polk, as to which should have the honor of com-
pleting the contract by which Texas was to be-
come a part of our empire. Tyler, the traitor to
his country, had the honor of signing the con-
tract, while Congress performed the deed by a
resolve.

The Abolition party then talked loudly and
fiercely against the institution of slavery, and
denounced it in unmeasured terms, and professed
to be violently opposed to it (as do the Demo-
cratic party now to arbitrary arrests), and de-
clared that they would not aid the Whigs in pre-
venting the enlargement of the area of slavery.
They, with equal vehemence denounced the
Democratic party as being venal and corrupt. I
will not say that it was done for the purpose of
covering up their hypocrisy, lest it be said that I
accused them of a want of sincerity. It is true,
however, that by their political action they
brought about the result that they foresaw must
exist, and the very object that the Democratic
party most desired. And precisely the same re-
sult will be brought about by the conduct of the
Democratic party in denouncing the Adminis-
tration— arraying the people as much as in them
lies against it — rendering it odious to them — in-
ducing the people to withhold their support,
that it may become weak and feeble and power-
less, so that the states in rebellion may divide
the Union and dictate their own term of peace.

I have said in substance in some of my pre-
ceding remarks that the founders of our Govei'n-
ment and some of our early statesmen consider-
ed the institution of slavery hostile to the prin-
ciples of our National Government ; that they
considered it a great social evil, which should be
gradually but certainly eradicated ; that it was a
relation fatal to industry, false to economy, in-
jurious to morals, and dangerous to liberty.
Such were the views of Jefferson, Lee, Tucker,
Madison, Washington, Gerry, Mason, Summers,
Franklin, Jay, Gaston, Brown, Pinckney, Mar-
tin, Henry Clay, Webster, Bronson, Dix, and a
great many more. The same or similar views
were entertained by the great men of the old
world who loved liberty and appreciated its
worth. Lord Mansfield, William Pitt, Montes-
quieu, Brissoit, Grotius, Beattie, Socrates, Plato,
Brougham, Burke, Dr. Johnson, Baron Hum-
boldt, Locke, Pope Leo X, and Pope Gregory
XVI.

It must be considered, however, that among
the latter-day saints of the Democratic party,
diffei'ent views are entertained, promulgated and
enforced. It is now contended and urged with
great earnestness, " that negro slavery is not
only not unjust, it is just, wise and beneficent."
" Slavery has no evils ; it is an absolute unmixed
good, in New York as in Virginia, to the white

man or master as well to the negro." Quite a
large portion now of the Democratic party insist
with great earnestness that slavery is founded
upon the indisputable truths of the word of God ;
and in obedience to the will of an all-Nvise and
just God they should and ought to carry out his
behests and uphold the institution, that the peo-
ple of tins great nation may be peculiarly fa-
vored and blessed by tlie AUniglity. Entertain-
ing and ciierishing this opinion, it is not to be
wondered at that we should have heard upon
this floor pretended Democrats assert " tliat the
President's Proclamation for emancipating the
slaves of all those who were in open rebellion and
hostility to the Government was an open and
palpable violation of the Constitution and of our
plighted faith to the slaveholdiiig states, and
that until openly wiUidrawn and renounced by
the President, no move men would be furnislied
to increase and strengthen our army, to light the
battles of our country and prevent the overthrow
of our national existence. Indeed, is the insti-
tution of slavery to be considered paramount to
the preservation of the best government that the
genius and wisdom of man, aided by Infinite wis-
dom, has been able to devise ? Are the claims
of the seceded states to their slaves — they hav-
ing renounced all allegiance to and renounced
all connection with the Natioiial Government —
paramount, in the estimation of some of our fel-
low citizens of the loyal states, to the liberties,
rights and privileges seciired under and by the
Constitution of the United States 1 Are such
men loyal 1 Are they truly patriotic 1 Do they
love constitutional liberty 1 Do they love our
Government and our common country 1 Are
they willing to offer up their lives, if need be,
upon its altar, that it may be perpetuated 1 Or
are they sick and tired of it, and, with high-
sounding words of loyalty, be the better enabled
to deceive the people, and betray tliem into sup-
posed security, until all that remains of our
national existence has been effectually passed into
the hands of secession.

if it be true that the President was forced, by
the clamor of those who believed that slavery
was the cause of the war and the breaking trp of
the Government, to issue his proclamation to se-
cure the co-operation of those that so believed,

ask if the Democrats are honest in the opinion
by them expressed, that the proclamatii.n is
wholly without effect ; that it cannot and will
not effect the freedom of a single slave. Would
they not, with great and unabated zeal, put forth
every exertion that human wisdom was capable
of, in aid of the Government to overthrow the re-
bellion, while the abolitionists were laboring un-
der the delusion, believing the Proclamation to
be an eflfective measure to abolish slavery.

It has been asserted upon his floor, " that if
any more arbitrary arrests were made in this State,
there would be a revolution here in the State of New

York, and that there ought to be." This senti-
ment was, when uttered, loudly cheered by the
people in the gallery and lobbies. In the lan-
guage of the Governor ia his message: "This
spirit of disloyalty must be put down. It is in-

consistent with all social order; with safety of.
person and property."

We also find another class of persons, Demo-
crats, so honest and so conscientious, and such
great sticklers for the Constitution (who would
rather let the Government slide than to step out
of it for one moment to rescue it from the hand
of the destroyer,) that they could not vote for
the passage of a law to legalize the acts of our
fellow citizens in raising money, and to repay
that which had been borrowed without legal
right, to advance to the patriot soldier to enable
him to leave his quiet and peaceful home, to
enter upon the theater of war in stern reality
upon the tented field, to drive back the advanc-
ing foe, which was then and is now threatening
the destruction of our Nation's existence. Yes,
when impending danger was imminent, well in-
deed may the Governor of oirr stale sound the
the tocsin of alarm and cry out : "This spirit
of disloyalty must be put down." When danger
is imminent, and must be met with force in
order to resist it, is there not a law that is para-
mount to, and overrides all human laws — one that
is acknowledged by all nations and in all coun-
tries, and universally acknowledged by the
whole human family — the law of self-defense.
He who would withhold the necessary means
that he has in his power and under his control,
and refuses to allo\v them to be used in suppres-
sing the rebellion, furnishes aid and comJort to
the enemy as elfectually as in any other way.

Again the Governor says: "in order to up-
hold our Government, it is also necessary that
we should show respect to the authoiity of our
rulers." " Where it is their right to decide upon
measures and policies, it is our duty to obey
and to give a ready support to their decisions.
This is a vital maxim of liberty ; without this
loyalty no people can be safe ; no government
can conduct public affairs with success ; no peo-
ple can be safe in the enjoyment of their rights."
" Unusual dangers demand unusual vigilance. ''■'

When the ])resent Administration came into
power our Nation had been rent in twain ; the
Constitution had been violated, its principles
openly set at defiance, and a portion of the
states, in violation of its solemn injitnctions, had
coalesced and organized a Confederate Govern-
ment and renounced all allegiance to the General
Govermnent. It liad seized all of the properly
belonging to the United States within its bounds
and had made ample provisions for resisting the
constitutional authority of the General Govern-
ment, by raising troo]is, building forts, erecting
batteries and providing itself with the munitions
of war ; and then gave notice to the Federal
Government that any attempt made to repossess
itself of its property, or any attempt to enforce
the laws of the United States, or any effort made
to put down the rebellion, would be resisted by
force, and any attempt to coerce them into sirb-
mission until ample time had been given the
rebel government to make full and ample pre-
parations for resistance, was to be put down not
only by Southern traitors, but by Northern
Democrats.

All will recollect the threats made by the
Democrats of the North, iu case coercion was
used.

From the first of November, 1860, (with truth,
I misht say, from the time and day when Mr.
Buchanan was inaugurated President), to the
fourth of March, 1861, the rebels had no resis-
tance, nor was any attempt made to arrest their
most treasonable scliemes, the nucleus of which
had been formed many years previous by the
societies organized in the South under Yancey,
Ruflin and others, known as the " Leaguers of the
South," and whose motto was "A Southern Re-
public is our only safety." Mr. Yancey im-
pressed upon his fellow-citizens, to enable them
to overthrow the National Government, that they
must " organize committees of safety all over
the Cotton States (and it is only iu them, he
says,) that we can hope for any effective move-
ment. We shall fire the Southern heart — in-
struct the Southern mind — give courage to each
other, and at the proper moment, by our organized
and concerted action, we can precipitate the
Cotton States into a revolution." During tlie
administration of Mr. Buchanan, I say, they had
undisputed sway. They were left by a worse
than traitorous Executive to mature and organize
a government based upon slavery, slavery being
its chief corner-stone, that they could more
efiectually destroy and dismember the parent
Government ; all which outrages were allowed
under the hypocritical declaration of the Presi-
dent that he had no constitutional power to ar-
rest them in their most treasonable acts. Misera-
ble man ! He has fallen so low that even the ergot
of treason would blush to do him reverence.
Oh ! what will not, and what wickedness caimot
be done under the name of Democracy. Judas
betrayed his Lord and Master with that emblem
of love, purity and fidelity, a kiss, into the hands
of his enemy. Where was the burning patriotism
that should ever fire up the soul of the Democrat 1
It had become extinct. Treason had eradicated
it from liis bosom if it ever had had a lodgment
there, of which, I confess, there is much doubt
in the public mind. I have heard an honorable
gentleman assert upon this floor " that the name
of Democrat was synonymous with patriot." Oh !
patriot, how low indeed hast thou fallen ; though
crushed to earth yet thou shall rise in all thy res-
plendent beauty and glory, and shed once more
thy genial ra3's into the heart of all our citizens
and invigorate them with patriotic fire ; that fire
which shall consume and destroy treason as the
fire burneth the stubble.

Suppose, Mr. Speaker, Congress had not "pro-
vided for calling forth the militia to execute the laws
of the Union, suppress insurrection and repel in-
vasion," had the President no power vested in
him as the head and Chief Executive officer of
the Nation 1 Will it be contended that he had
nonel No, never, by any man wlio loves his
country. It is a duty incident to superintending
the common defense and preserving the internal
peace of the Nation,

The President, by the Constitution, is Com-
mander-in-Chief of the army and navy of the

United States and of the militia of the several
states when called into the actual service of the
United States. Justice Story says : " The com-
mand and application of the public force, to
execute the laws, to maintain peace and to resist
foreign invasion, are powers so obviously of an
Executive nature, and require the exercise of
ciualities so peculiarly adapted to this depart-
ment, that a well organized Government can
scarcely exist when tliey are taken away from it.
Of all the cases and concerns of the Government
the direction of tear most peculiarly demands
those qualities which distinguish the exercise of
power by a single hand. Unity of j^lan, ])romp-
titude, activity and decision are indispensable to
success, and those can scarcely exist, except when
a single magist,rate is entrusted exclusively with
the power." Vide Jonrnalof Convention, 225, 295,
362, 383. \ Kent's Com., Sec. I3,pcige2(ji. T.
Elliot DeVt, 103. ' The Federalist, No. 74.

The President is invested with the sole and
exclusive power of judging when the exigency
has arisen that requires the militia to be called
forth. 12 Whcaton's Rep., 19,29, 30. bth Hoioard,
37. This question was practically settled as early
as 1794.

There are many incidental powers that belong
to the President which are necessarily implied
from the nature of the functions confided to him.
Among those must necessarily be included the
power to perform them without any obstruction
or impediment whatever. In the exercise of
some of his political powers he is to use his own
discretion, and is accountable only to his coun-
try and to his own conscience. His decision in re-
lation to these powers is subject to no control,
and his discretion, when exercised, is conclusive.

After the wasting away of a large number of
the Army of the Potomac in the Chickahominy
swamps, and the rescuing of what remained
from its total annihilation by the rebel army
through the strategy of General Pope in making
his feint on Gordonsville, the President found it
necessary to resuscitate the army, the whole
army, by fresh levies ; he immediately issued his
call for three hundred thousand, and soon after
for three hundred thousand more, and a time
was fixed by which the recruits were to be
raised by volunteering ; and if there should not
be the requisite number obtained in this way,
then, under the recent act of Congress, a draft
was to be made to make up the deficiency.
When that order was issued there immediately
commenced a stampede among cowards and
traitors to expatriate themselves from their coun-
try, and some more courageous than others
threatened to resist the draft, and endeavored to
prevent men from enlisting both by word and
deed, and to denounce the Administration and
indirectly to aid and assist the rebels by pre-
venting enlistment and urging men subject to
militia duty to leave the United States. In the
language of the Governor of our state, the period
had arrived when " unusual danger demanded
unusual vigilance." The President, following
the principles contained in the examples set by
Congress in 1777^and also of him " who was first

in war, first in peace, and first in the hearts of his
countrymen," issued an order prohibiting tlie
people leaving their state to get rid ot the obliga-
tions they owed to their country in the lionr of
its greatest peril ; and also ordering tiie arrest of
persons guilty of treasonahle and disloyal con-
duct, and as to those suspended the privilege of
the writ of habeas corjms. Who soujiht to leave
their country ? A Repuhlican ? No. That
would be a gross hbel upon the name and char-
acter of the Republican jjarty. Rej^nblican,
that's a term synonymous with loyalty and true
patriotism. Who were caught in the meshes of
the order hefore mentioned ? I answer none ex-
cept those who deeply sympathised with treason
and who hy their disloyal conduct were retard-
ing and preventing the Government obtaining
the requisite force desired with which to over-
throw the rebellion.

The power of putting forth this extraordinary
remedy against tliese evils whicli Avould other-
wise destroy the Government, is in itself, says
Tytler, '• one of tlie greatest blessings which we
owe to our free Government." Of such tempo-
rary restraint on the natural liberty (says Tyt-
ler) of the subject none will ever complain but
those to whom that restraint is necessary. It has
ever been deemed right and just in finies of im-
minent danger to extend power beyond the law
upon the principle of absolute necessity.

Washington caused men to be arrested and
removed from the State of Pennsylvania for sedi-
tious language. He caused the arrest of twenty
gentlemen oi high respectability in Philadelphia,
and to he removed to Virginia, where they were
detained.

On the 26th of August, 1777, Congress passed
the following resolution. Vide Journal of Con-
gress, Vol. 3, page o50.

" Resolved, That tho Executive authorities of tlie
Stntc-s of l-'ennsyivania iiud Delaware be rt quested to
cause all persons within their respective t^uiles noto-
riously diBiitltcted, lorlhwith to be ajjprelieiided, disnnn-
ed and seemed, till such lime as the resiective Slates
think they may be released without injury to the com-
mon cause."

This resolution was preceded hy a recital :

'^W/iercas, theprinciplesof policy and self preservation
require that all persons who may reasonably be sus-
pected of aiding or abetting the cause of the enemy may
be prevented Iroin pursuing measures ii jurious to ihe
general weal."

April 17, 1777, on application of the delega-
tion from the State of Maryland. Congress passed
a resolution appointing a committee of four to
devise ways and means of suppressing the spirit
of toryism in the counties of Sirmnierset, Wor-
cester and Sussex, and preventing them from
taking measures prejudicial to the cause of the
United States.

On the 19th of April the committee made their
report, recommending the Executive authorities
of the States of Delaware and Jlaryland to forth-
with apprehend and remove all persons of influ-
ence or of desperate character withhi the coun-
ties before mentioned who have betrayed or
manifested a disaffection to the American cause,
to some remote or secure place or places witlnn
their respective states, there to he secured with-

out any person having access to them, unless hj
license first obtained from such civil or military
officer of tlie prison, appointed, &c.

April 22, 1777, a resolution 2^asscd Congress
notifying Governor Trumbull, of Connecticut,
that William Franklin, Governor of New .Jersey,
and who was then a prisoner in Connecticut for
seditious conduct, and who had been taken from
New Jersey to Connecticirt and confined tliere,
during which time he promulgated there his se-
ditious sentiments. The Governor of Connecti-
cut was requested forthwith to order the said
WiHiara Franklin into close confinement, pro-
hibiting to him the use of pen, ink and paper,
or the access of any person or persons but such
as are properly licensed for the [lurpose.

Out country was then strucrgling as now for
liberty. I should, jierhaps, say to preserve that
sacred right; and shall it be said and will it be
said, that we should be any the less vigilant now
in preserving it than we were in obtaining it,
and have we not more Tories now than then.
Lincoln, like Washington, feels disposed to arrest
treason in the now loyal states before it gets
such a foothold as to bear powerful sway. Like
Jackson, also, who put, down the monster in
1832 ill South Carolina the moment it raised its
impious head ; and like Washington too, wlio,
on the 22d of April, 1798, by the unanimoits
advice of his cabinet, issued liis iiroclaraation
for bidding the citizens of the United States not
to take any part in the hostilities then existing
between Great Britain and France; warning
them againt carrying goods contraband of
war, &c. Wait's American State Papers; 5
MarshalV s Life of Wanhington, chapter 1, page
406-8; 2 Story on the Coristi'ulion, ^ 1570.

The framers of the Constitution adopted the
plan, says a distinguished jurist, of *■ checks and
balances," forming separate departments o
Government, and giving to each depai-tment
separate and limited power. These departments
are co-ordinate and co-equal, that is, neither
being sovereign, each is independent in its
system, and not subordinate to tlie others; no
arbiter was established among them, they were
left eacli independent and free to act out its own
granted powers witliout any ordained legal su-
perior, possessing the power to revise and reverse
its actions.

The powers of the judiciary are specially
granted and defined \)y the Constitution, Art. 3,
^ 2. It is the especial duty and function of the
judiciary tu hear and detei'inine cases, not to
" establish principles " nor " settle questions "
so as to conclude any person hut the parties and
privies to the cases adjudged. The court is not
even bound by its own decisions. It often over-
rules and disregards tliem when subsequent
light and refieclion convinces it of its errors.

The Executive department — composed of one
man alone, and the only departn;ent of our Gov-
ernment that is so organized — the President, is
charged with a greater range and variety of
power and duties than any other department.

The President, as the Chief Executive officer
of the nation necessarily holds an active position

and must be active, the dvtties of his office re-
quire it. He is often called upon to take the
initiative ; he must begin operations.

His great function is execution, for he is re-
quired by the Constitution " to take care that
the laws be faithfully executed." Not part of
the laws, but all laws, and in the exercise of that
power or function, his duties are co-extensive
with the laws of the land. He is required by
the Constitution, before entering upon the duties
of his office, to take and subscribe the followinn;
oath : that he " will faithfully execute the
office of President of tjje United States, and
"Will, to the best of his abilily, preserve, pro-
tect and defend the Constitution of the United
States."

By article 2, § 1, of the Constitution, all of the
executive powers of the nation are expresslj'
vested in the President. The President has cer-
tain prerogative poAvers tliat are specially dele-
gated to him, in the Constitution; for example,
the pardoning power, the appointing power, the
veto powder, the treaty making j)ower, &c. The
executive p')wer is granted generally and without
particular specification. By article 2, § 3, of
the Constitution, the solemn injunction is im-
posed upon the President, " he ihall take care that
the laws be faUlfally cxccufed.'^ The President
then is intrusted with the high, responsible and
sacred duty of supporting, preserving, protecting
and defending tiie Constitution, and seeing that
the laws be faithfully executed. To enable him
to do this, he is made Cnmmander-hi-Chief of
the army and navy, and invested with power to
call forth the militia that the laws may be exe-
cuted, when opposed by force, and to suppress
insurrection and invasion. To aid the President
in the discharge of this function of his office,
at an early period Congress passed laws that the
militia be called out when combinations were
too powerful to be suppressed, by the ordinary
course of judicial proceedings or by the powers
vested in the marshals.

The President is required to preserve the Con-
stitution, he is required to put down the rebel-
lion. The manner in which he shall do it is not
prescribed, but the means which he is to use are
the army and navy (meairs of power and force).
They are placed at his disposal, and with those he
ie to put down the rebellion and preserve the Con-
stitution. He is to use his own discretion as to
the manner in which he will use the means
placed at his command, and be governed as each
exigency shall arise. It was, no doubt, deemed
prudent and wise on the part of the President
when he found emissaries and spies convejing
information to the insurgents and furnishing
them with supplies, to cause their arrest (as in
1777) and imprisonment, and this may, no doubt,
be done, either for the purpose of bringing them
to punishment for their crimes, or they may be
held in custody for the milder end of rendering
them powerless for mischief until the exigency
is past. No man can now even comprehend the
extent and magnitude of this rebellion that is
now desolating the land. One day, in certain
localities it will disappear, and all seems to be

quiet and the people in the full fruition and en-
joyment of all their rights ; when all apparently
is thus secure, it again appears in their midst
with renewed vigor and energy.

We see it, too, frequently cropping out in the
loyal states in certain localities, and although a
small spark of it at first, if not immediately ex-
tinguished, would soon get strong and bold
enough to break forth with great power and
desolating force. It is the duty of the President
to suppress the first dawning of treason, and of
all loyal men to interpose and come to his aid.
Had James Buchanan been governed by the oath
he had taken and rendered extinct the first dawn-
ing of the rebellion in South Carolina, as it was
his duty to do, this wicked and uin-ighteous war
would never have had an existence Now, every
state in our Union is poisoned and infected, more
or less, \\\l\\ aiders and abettors to the rebellion.
Under strch circumstances, and in such a state of
affairs, " the President must, of necessity, be the
sole judge, both of the exigency which requires
him to act, and of tlie manner in which it is
most prudent for him to employ the powers in-
trusted to him, to enable him to discharge his
colistitutional and legal duty; that is, to sup-
press the insurrection and execute the laws, and
this discretionary power of the Piesident is ful-
ly admitted by the Supreme Court in tiie case of
Martin vs. Mott, 12 Wheaton's Rep., page 18 ;
7 Curtis, 10."

Tlie President is the chief civil magistrate of
the Nation, and being such, and because he is
such, he is the constitutional Commander-in-
Chief of the army and navy ; and thus, within
the limits of tlie Constitution, he rules in peace
and commands in Avar, and at this time he is in
the full exercise of both powers.

After a most careful examination I am of the
opinion that in case of a great and dangerous re-
bellion like the present, Avhich is devastating our
land, the public safety reciuires the arrest, con-
finement, trial and conviction of persons impli-
cated in it by furnishing aid, comfort or assis-
tance to those guilty of treason, whether they be
near the scene of operations or far remote, and
that the President lias lawful poAver and authori-
ty to suspend the privilege of the Avrit of habeas
corpus to those persons arrested under such cir-
cumstances, he being especially charged by the
Constitution Avith the ''public safety," and he is
the sole judge of the emergency that requires his
prompt action. Congress having omitted to pro-
vide for such a case it must be an incidental, if
not an inherent right, under such circumstances.

Will it be contended for a moment that Avhen
the emergency is such that it becomes necessary
for the President to call forth the militia to exe-
cute the laAvs and surpress insurrection, and a
portion of the insurgents have been captured
and placed in confinement, that the Avrit may be
issued to the Piesident to bring the insurgents
before the judge " to clo, iubmit to, and receive
ivhatever the said Judge shall consider in that be-
half ?" I deny that, under such circumstances,
he is under any obligation to respond tothcAvrit.
_jWill it be contended for a moment by any

Tnember of the Democratic party, notwithstand-
ing it is alletred that the President cannot sus-
pend the writ of habeas corjjxs, that tlie persons
taken in arms against the Government as pri-
soners of war, are entitled to the privileges of
the writ 1 AVill it be said that in such a case
that no man shall be deprived of his " personal
liberty except by due process of law ?"

Will it be said that the person thus taken in
arms, and in another state, while resisting the
laws, and brought to a loyal state for safe keep-
ing and for trial in the state where the offense
was committed, when the rebellion shall be put
down "? May he demand his release from im-
prisonment, under the Constitution, and would
the writ of habeas corpus be effectual for that pur-
pose 1 The offending person has not been com-
mitted by an J' process kindred to the common law,
but by military power — martial law — not milita-
ry law. No one will pretend but that, in such
case, the personal liberty of him who is taken in
rebellion must be restrained. And it is right
■that it should be. And yet the Constitution
does not mention the right so to do. AVill it be
said that it is a gross usurpation of power on the
part of the President ■?

During the period of the Dorr rebellion in
Rhode Island, the question was considered by
the Supreme Court in the case of Luther agst.
Borden, 7 Howard's Reports, 1, 45, et seqiiiter
The President recognized the old government of
the state in opposition to the one sought to be
established by the insurrectionists headed by
Dorr. Martial law was declared throughout the
State of Pihode Island, and the President called
forth the militia to put down the rebellion. Men
were seized and cast into prison, and otherwise
deprived of their personal liberty. The power of
the writ of habeas cor2ms was invoked, and dur-
ing the investigation of Lutlier vs. Borden, who
had brought his action to recover damages for
an alleged unlau'ful arrrest, the court, in giving
its opinion, discussed several of the most import-
ant topics treated of in tliis opinion, and among
them the power of the President alone to decide
whether the exigency exists, authorizing him to
call out the militia under the act of 1795. The
court affirmed the power of the President in that
respecl, and denied the power of the court to ex-
amine and adjudge his proceedings. Chief Jus-
tice Taxey said if the court had the i)ower
and should come to the conclusion that the
President had erred, then it would become the
duty of the court to discharge those who were
arrested or detained by the troops in the service
of the United States or the Government which
the President w'as endeavoring to maintain. //",
suTjs the court, the judicial power extends so far, the
question contained in the Constitution of protection
against insurrection is a guaranty of anarchy and
not of order. The same doctrine is also main-
tained and recognized by the following authori-
ties : 2 Story on the Consti'uiwn §§ 1109 to 1213,
and many cases referred to in the Notes.
Also, Filming vs. Paige, 9 Hcwaid, G15 ; also,
Cross agst. Harrison, IGHivaj-d, 189 ; 7 Wheaton,
305 ; Martin vs. Molt, 12 Wheaton, 29.

The Democratic party ought not to complaia
of the President and charge him with overriding
the Constitution and the laws in his great zeal to
XJreserve the Government. Tliey being such great
admirers of constitutional and civil liberty, they
should lend their whole energies to liim in aid
of the Government and arrest the slightest sym-
tom of disloyalty. But instead of this, it is to
be feared that the course which they are now
pursuing tends but to revolutionize our own
Government and furnish aid and comfort to the
enemy.

President Jackson seized the purse of the
nation and wrested it from the hands of the
legal and constituted autliority and placed it
elsewhere ; removed the officer in charge and
placed another in his stead because he believed
he saw that it was not safe in the place where it
had been placed by tlie law of the land. For
this piece of high-handed usurpation, he received
the condemnation of one of the most enlight-
ened and intelligent body of men that ever sat
in the council of our nation. He declared the
United States Bank to be unconstitutional and
had no legal existence, notwithstanding the sol-
emn judgment of the highest judicial tribunal of
our land to the contrary. He declared it was
his duty as the chief Executive of the nation to
give such a construction to the Constitution as
he, in his judgment, believed to be right. During
the period which he held that high office, the
nation condemned the act of the Senate of the
United States, and required that the record of
censure should he erased and that the condemned
should do it with his own hand.

He declared martial law when lie believed
danger to be imminent at New Orleans ; not
from the people of the city, but from the British
army that was advancing towards that place ;
he wanted help to resist their advance, hence he
pressed them into the service, and imprisoned a
judge for interfering with his mandate. Jack-
son was prosecuted and fined one thousand dol-
lars, and in 1844, I, as a member of the legisla-
ture of this state, voted in common with others
for a resolution asking Congress to refund the
money to him with interest. It was done, and
the Nation aiij>roved of the power exercised of
declaring martial law and suspending the writ
of haleas corpus — nor was the act disapproved
of by the President of the United States. How
much more should the Nation, especially the
loyal citizens, approve of and ratify the efforts
made by the present chief Executive of the Na-
tion in his efforts quietly to suppress disloy-
alty in the Empire State as elsewhere. He fol-
lows the noble examples of our fathers of 1777 —
and of the Saviour of the world — when the wo-
man was brought to him who by law M-as to be
stoned to death for the crimes she was guilty of,
her accusers that were without fault were direct-
ed to cast the first stone ; not a stone was thrown,
and she was commanded to depart in peace and
sin no more.

The Governor again says in his message : " I
shall not inquire what right states in rebellion
have forfeited, but I deny that this rebellion can

8

sn?peTid a single riglit of the citizens of tlie loyal
states." What a declaration from the chief Exe-
cutive officer of our slate. " Not a single right of
tliG citizens of the loyal states to be suspended,"
is the declaration true "? Did the Governor, at the
time he penned that declaration, believe it to be
true? What a sweeping declaration, and how
untrue. " Not a single right of the citizens of
tlie loyal states suspended !" Are tlie citizens
of the " loyal states '"' now secured or allowed to
enjoy those high constitutional rights mentioned
in article 4, section 2 of the Constitution, that
" the citizens of each state shall be entitled to all
the privileges and immunities of the citizens of
the several states ?" Are not the rights of all
loyal citizens of the loyal states at present sus-
pended that they are entitled to in those states
(that are in rebellion) in common with the citi-
zens of those states? Are not the rights of
creditors of the loyal cilizens of loyal states in re-
gard to enforcing the collection of demands
against their debtors residing in the rebellious
states suspended 1 Can they be enforced 1
" Is full faith and credit given in each state to
the public acts, records, and judicial proceedings
of f. e others'!" Most assuredly they are not.
Are the citizens of the loyal states permitted
to enjoy the right of free egress and repress
into Virginia, or any of the states that have
thrown olf their allegiance to the Government of
the United States ? No one pretends it,

Tlie Governor assails the Proclamation of the
President issued on the first day of January,
1863, as being wholly unwarranted, and the sole
effect of it is to emancipate the slaves of those
who are not in rebellion and who are loyal citi-
zens. If this declaration or assertion was true,
then indeed would the Proclamation be a high-
handed piece of usurpation on the part of the
Executive of the Nation. The assertion is not
only untrue, but, so far as we have the means at
present of judging, not sustained. The Procla-
mation, by its very language, extends to those
states and parts of states only that are in rebel-
lion. What right have we to say that there are
many men in the Confederate Government in
those states and parts of states to which the Pro-
clamation applies, owning slaves, that are loyal
to the National Government 1 Is not the evi-
dence against any such presumption? I so be-
lieve.

The Governor arrives at his conclusion from
the Jact that Congress passed a law, which re-
ceived the President's signature, July 17, 1862,
entitled An act to suppress insuri'ectioii, to pun-
ish treason, and rebellion, to sicze and confiscate
the property of rebels, and for other purposes.
That portion of the act evidently alluded to by
the Governor is as follows :

" § 9 And te it furtlier enacted. That all slaves of per-
Bons wbo Shalt hereafter be eiigfiiied ia rebellion against
the gnvernment of the United States, or who shall in
any way give aid or comfort thereto, escaping from such
persons and taliin-^ refnge within the lines of the army ;
and all slaves captured from such persons, or deserted
by them ar.d convn^ under the control of the Govern-
ment ot the United States ; and all slaves of such per-
sons found or being within any place occupied by rebel
forces and afterwards occupied by the forces of the Uni-

ted States, shall be deemed captives of war, and sliall be
forever free of their servitude, and not again held as
slaves.

" § 10. And be it further enacted. That no slave es-
caping into any State, Territory or the District of Co-
lumbia from any other State, sliall be delivered up, or
in any way impeded or hindered of his liberty, except
for crime or some cft'ence against the laws, unless the
person claiming said fugitive shall first make oath that
the person to whom the labor or service of such fugitive
is alleged to be due is his lawtul owner, and has not
borne arras against the United States in the present re-
bellion, nor in any Way give aid and comfort thereto ;
and no person (ngaged in the military or naval service
of the United States shall, tinder any pretence whatever,
assume to decide on the validity of the claim of any
person to the service or labor of any other person, or
surrender up any such person to the claimant, on pain
of being dismissed from the service."

The Proclamation is made the pretext and not
the cause of assailing the Administration, and
threatening to withhold men and means from its
support. It is not the cause that has aroused
the hatred and excited the bitter opposition of
the so-called Democratic party. The Proclama
tion reaches no further than the act of Congress
referred to, nor any further than the laws of war
fully authorize. The Proclamation, if it has any
effective force whatever beyond the act of Con-
gress or the laws of civilized warfare, I have
failed to see it.

It would not be uncharitable to say that the
real cause of the opposition is because the insti-
tution of slavery is more sacred in their estima-
tion than constitutional liberty. Slavery, an in-
stitution (hat tlie founders of our Government
and many of our great statesmen considered hos-
tile to the principles of the Government, one of
great social evil, which should be gradually but
certainly eradicated; that it was a relation false
to industry, false to economy, injurious to morals
and dangerous to liberty.

Among the latter day saints of the Democratic
party different views are entertained, cherished
and promulgated. Charles O'Conor, speaking
for the Democracy, at least of the state of New
York, avers "that negro slavery is not only omt un-
just— it is Just, ivise and. beneficent.^' These are
the views now, no doubt, of a large portion of
the Democratic party. In fact, it is not denied
but admitted, and we now have a petition before
this Legislature praying the establisliment of
slavery in this state. But a few days since one
of the leading Democratic papers of this state
asserted that " slavery has no evils ; it is an abso-
lute, unmixed good in New York as in Virginia,
to the white man or master as well as the
negro." Of such is tlie language of the "Cau-
casian," and also of the honorable gentleman
from New York, Mr. Hutchings. The institu-
tion is now supported upon the principle that it
has for its chief corner-stone the word of God ;
that it is a duty paramount to all others that it
be sacredly upheld and maintained.

If the Proclamation has no binding effect and
cannot, and will not, liberate one slave, nor be
the means of doing it any faster than our army
advances into tlie country of the insurgents,
why complain of this meaningless and powerless
act of the President? Tiie President, for wise
purposes in his estimation, issued it. He be-

lieved it would be a makeweight in weakening
the enemy and an incentive to calling into active
service more men. Most assuredly, then, if the
Democrats love our Government aud are honest-
ly in favor of overthrowing the rebellion, they
should now, while those that would not aid
until the Proclamation was issued, meet them
with earuest enthusiasm in defense of the Gov-
ermuent. Many of us may not thought it wise
or best to have issued the Proclamation. The
President was the sole judge; and it was his
duty to do what he, in his judgment, believed
would have a strong tendency to weaken the
power of the rebellion.

For the purpose of putting down and over-
throwing this rebellion, it is universally con-
ceded that tlie principles that govern civilized
warfare (if that expression is admissible) are to
govern the conduct of each opposing party. The
war on the part of the United States is just and
humane; unjust and wicked on the part of the
enemy (the seceding states). The Government
has the right to employ all the means which
are necessary to overthrow its enemies — to re[)ress
injustice and violence, and forcibly to compel
him who is deaf to the voice of justice. AVe
have a right to put in practice against the enemy
every measure tliat is necessary, in order to
weaken him and disable him from resisting us,
and supporting liis injustice; and we may
choose such measures as are the most efficacious
and best calculated to attain the end in view.

Bynkershoek, an acknowledged author of
the laws of war, says : " It is a question whether
our friends are to be considered our enemies,
when they live among the latter, say in a town
which they occupy." '• For my part I think
they must also be considered as enemies, certain-
ly as to the goods which they have within the
hostile territory, therefore those goods may be
properly taken by us by this law of war, if
they have been before taken by the enemy. We
may lawfully take all that belongs to the enemy,
and those goods are a part of the enemy's do-
minion, which, as they may be useful to them,
may be hurtful to us." " If we take nature for
our guide — that great teacher of the law of na-
tions— we sliall find that everything is lawful
against an enemy as such. A nation which
has injured another, is considered, with every-
thing that belongs to it, as being confiscated to
the nation that has received the injury. To
carry that confiscation into effect may certainly
be the object of the war, if the injured nation
tliiuks proper; nor is the war to cease as soon as
she has j^received a reparation or equivalent for
the injuiy sufiered."

It is conceded by all nations, and all standard
writers upon the laws of war, and laws of na-
tions, aud of international law, that it is just,
right aud proper to make use of all weapons to
overthrow an unjust war, to take life, destroy
property, seize all property that can or may be
useful ; in fine, doeverthing which shall deprive
them of their means, that would be useful to
them in prosecuting their object. The Demo-
crats ackuowledge ail this to be just, with one

exception, that's the negro ; that is too sacred a
piece of property to be captured or made use of
in overthrowing the rebellion. I say property,
because the slave has been declared so to be by
the highest tribunal in the land. By the Demo-
cratic party, he is held far higher in the scale of
human beings than the white man, he is not even
allowed to be placed in danger's way, but is to
be placed upon the pinnacle of security, and far
removed from danger, except ivhen used b// our
enemies and then it is all rir/ht. I have no such
feelings for the slave ; I do not think him, to say
the least, superior to the white man, and when
necessity required it, I would make them useful
in overpowering tiie enemy. If the President's
Proclamation should have the effect to take from
rebellion all of its power <".nd force, except the
slaves, then it would have been just and equita-
ble, and within his legitimate war power, in the
opinion of the Democracy. The right of self-
defense belongs to nations as well as to individu-
als, and they may use force when and so far as
may be necessary to prevent a threatened aggres-
sion or menaced injury, to protect their essential
rights, or procure redress for important and
national wrongs. 3 Wcbsto-^s Works, 207, 211;
Wheat. H,st. L. N., 338 ; Wheat. Int. L., 36, 37;
Vattel, b. 3, ch. 8, §§ 136, 137 ; Id., b. 4, ch. 4, §
43; Id., h. 3, ch. 3, $ 26.

All justifiable wars rest on self-defense. They
must, in effect, be wars of defense, though a de-
fensive war may be carried on by invading the
territory of the enemy. Vaitcl, h. 3, ch. 1, §M, 4;
ch. 3, $ 25; ch. 13, ^ 201, and while in the
enemy's country, we have the right to levy con-
tributions to sustain our army, and make a com-
plete indemnity to oui'selves. Vaitel, Whecton on
L. N. In the time of our war with Mexico, at the
ports we had seized, a duty was imposed and col-
lected and sustained by the Supreme Court of
the United States, i How. R., 603-614; 4 Wlieat.
R., 254; 16 How. R., 164.

The title to personal property of an enemy,
captured on land by a military power, vests iu
the captors after twenty-four hours' possession,
without any legal condemnation. Vaitcl, b. ch.
13, J 186; 11, 168, p. 385, 6 Am. ed. ; Wheat.
Int. L., P. 4, ch. 2, ^^ 11, 12, p. 432.

The Governor says in his message " our Union
must be restored complete iuall its parts. No
section must be disorganized beyond the una-
voidable necessities of war." " The vigor of
war will be increased when the public mind and
energies are concentrated upon the patriotic,
generous purpose to restore our Union for the
common good of all sections." Was it not and
is it not the purpose and object of the Adminis-
tration to overthrow the rebellion and establish
peace for the express purpose of restoring " the
Union for the common good of all sections."
When the Governor says " the Union must be
restored," " and our armies in the field must bo
supported, all constitutional demands of the
General Government must be responded to."
With these declarations we are lead to suppose
that the Governor and his political party are to
withdraw their factious opposition to the Ad-

10

ministration and at once lay aside all political
diffei-ences and unite their whole energies with
the Republican party and make common cause
against our common enemy, and that no other
party shall be known tlian the party of the whole
people, outside of the Confederate States, wedded
together by the bonds of brotherly love and
affection, marching on shoulder to shoulder
against those in rebellion until the rebel spirit
shall be put down and they shall cry for peace ;
and then, and not until then, let peace be spoken,
and although the rebels make the following
declaration and exclamation in regard to their
reunion with the Federal Government, viz. :
The Richmond Dispatch waxes furious upon
this topic. It exclaims :

"Reconstruction. Can they reconstruct the family
circles which they have brolien— can they reconstruct
the fortunes which they have scattered— can they recon-
Btruot the bodies of our dead kindred, which by tens of
thousands they have destroyed? When they can do
this they can reconstruct the old Union."

** * * # * *

" We warn the Democrats and Conservatives of the
North to dismiss from their minds at once the miserable
delusion that the South can ever consent to enter again,
upon any terms, the old Union. If the North will allow
us to icrile the Constitution ourselves, and give us every
guarantee us would as/c, we leould sooner be under the
Government of England or France than under a Union
with men who have shown that they cannot keep good
faith, and are tJie most barbarous and inhuman as well
as treacherous of mankind.

" If the Reconstructionists want peace, they can easily
have it upon the terms on which they could have always
had it — letting us alone. Wc ask neither more nor less.
We are making no war on them. We are not invading
their territory, nor giving their homes to the flumes,
their population to prison and the sword, their women
to a fate worse than death. Let us alone I That is all
we ask. Let us alone, and peace will return once more
to bless a di8*/racted land I But do not expect us to de-
grade ourselves and cast dishonor upon the graves of our
kindred by ever returning to the embrace of those
whose hands are dripping with the tears and blood of
our people."

The infamous Wm. L. Yancey, who is a mem-
ber of the rebel Senate, recently introduced a
series of resolutions, of which the following is
one :

5. " The Government of the Confederate Stales, in
consideration of the change in public sentiment which
has occurred in several of the Northern Slates, wherein
political elections have been recently held— sympathiz-
ing most kindly with those by whose manly exertions
that change has been brought about, would be willing
to conclude a.iust and honorable peace with any one or
more of said States who (.renouncing all political connec-
tion with New England) may be found willing to st ipulate
for desisting at once from the further prosecution of the
war against the South, and in such case the Govern-
ment of the Confederate Slates would be willing to en-
ter into a league, ofl'ensive and defensive, with the states
thus desisting, of a permanent and enduring character."

Those who carried the election alluded to
should make haste to repudiate this classifica-
tion, or forever hereafter endure meekly the as-
severation that they are " sympathizers with the
rebels." Has Yancey made a mistake in regard-
ing the reactionist Democrats as friends of the
secessionists'?

Let us not rashly, or from the pride of a pro-
phetic spirit, conclude that this beautiful Gov-
ernment, formed by our fathers and transmitted
to us unimpaired, is, with the mighty empires of
antiquity, and the ill-constructed governments
of later times, destined to inevitable and speedy
dissolution. To an ardent wish for its perpetual
duration, let us add the only means of securing
it, the abandonment of party bickering and a
perfect union of the hearts and minds and a
united and settled purpose on the part of all
those who love liberty and that are willing to
pledge their lives, their fortunes and sacred
honors in its defense and in the overthrow of the
rebellion. Then, and not until then, may we hope
for peace and a happy reunion of the States.